IN THE SUPREME COURT OF FLORIDA
CASE NO. 95,227
MILO A. ROSE, Appellant,
V.
STATE OF FLORIDA, Appellee.
ON APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT,
IN AND FOR PINELLAS COUNTY, STATE OF FLORIDA
REPLY BRIEF OF APPELLANT
GREGORY C. SMITH Capital Collateral Counsel Florida, Bar No. 279080
JOHN A. TOMASINO Assistant CCC-NR
Florida, Bar No. 106021
LINDA McDERMOTT Assistant CCC-NR, Florida Bar No. 0102857
OFFICE OF THE CAPITAL COLLATERAL COUNSEL, Northern Region of Florida, Post Office Drawer 5498, Tallahassee, FL 32314-5498
This
proceeding involves the appeal of the circuit court’s summary denial of Mr.
Rose’s motion for postconviction relief. The motion was brought pursuant to
Fla. R. Crim. p. 3.850.
The
following abbreviations will be utilized to cite to the record in this
cause, with appropriate page number(s) following the abbreviation:
“R”—
record on direct appeal to this Court;
“PC-R1.”
— record on appeal from initial denial of postconviction relief;
“PC-R2.”
— record on appeal in the instant proceeding;
“Supp.
R.” — supplemental record on appeal materials.
PRELIMINARY
STATEMENT
TABLE
OF CONTENTS
TABLE
OF AUTHORITIES
ARGUMENT
IN REPLY
ARGUMENT
I—DILIGENCE
ARGUMENT
II—GOTCHA
ARGUMENT
III—THE
DEAL
CONCLUSION—THE
MYTH CONTINUES
Brady v. Maryland, 373 U.S. 83 (1963).
Card v. State, 652 So. 2d 344 (Fla. 1995)
Jones v. State, 591 So. 2d 911 (Fla. 1991)
Lemon v. State, 498 So. 2d 923 (Fla. 1986)
State v. Gunsby,
670 So. 2d 920 (Fla. 1996)
Strickland v. Washington,
466 U.S. 668 (1984)
Strickler v. Greene, 119 S. Ct. 1936 (1999)
Swafford v. State,
679 So. 2d 736 (Fla. 1996)
United States v. Agurs,
478U.S.97 (1976)
United States v. Bag1ey,
473 U.S. 667 (1985)
United States v. Giglio,
405 U.s. 150 (1972)
Appellee
urges this Court to deny Mr. Rose an evidentiary hearing on the issues presented
in his Motion for Postconviction Relief. Appellee’s argument for denying Mr.
Rose an evidentiary hearing is summarized as: 1) Mr. Rose’s trial counsel
failed to diligently uncover the State’s deal with witnesses Borton and Poole;
2) the lower court is not required to evaluate the materiality of Mr. Rose’s Brady
claim in conjunction with the additional alleged constitutional errors in Mr.
Rose’s trial; and 3) Poole and Borton were completely unnecessary in securing the
conviction and death sentence against Mr. Rose. Each of these assertions are
false, as is discussed below, and the lower court erred in denying Mr. Rose the
opportunity to prove his claims in an evidentiary hearing. See Lemon
v. State, 498 So. 2d 923 (Fla. 1986).
ARGUMENT I -DILIGENCE
Pursuant
to the rules regarding filing successive motions for postconviction relief, the
motion must be filed within one year of when the facts germane to a claim were
discovered. Fla.
R. Crim. P. 3.851. Appellee is not arguing, nor did the lower court find,
that Mr. Rose did not file his successive motion for postconviction relief
within one year of uncovering the State’s deal with Barton and Poole. Instead,
the lower court, as to diligence, stated that Mr. Rose’s trial counsel (Rouson)
failed to inquire as to what charges were pending against Borton (PC-R2. 762).
This question goes to the second prong of a Brad analysis (whether the defense
knew of the evidence in question), not to whether postconviction counsel was
diligent in uncovering and presenting the claim.
Additionally, the lower court must be unfamiliar with the deposition of Barton,
wherein Rouson asked the specific question the lower court pondered. When Rouson
inquired of Barton’s prior and pending convictions, Assistant State Attorney
Young (Young) interrupted the witness and stated, “why don’t you ask if the
marijuana charge is a felony or a misdemeanor.” (R. 209). Barton replied it
was a misdemeanor (R. 209). Rouson inquired, Young interceded, and the truth of
the deal between the State and Barton remained hidden from Mr. Rose. This
conduct, “attributable to the State [] impeded [Mr. Rose’s] access to the
factual basis for making a Brady claim.” Strickler v. Greene, 119 S. Ct. 1936, 1949 (1999) . The State cannot actively hide information
from the defense, and then complain later when the defense finally discovers it.
Appellee
argues that Ms. Barton’s pretrial deposition wherein she discusses her
misdemeanor conviction should have somehow alerted Rouson to the deal that we
now know existed between Barton and the State. Such a suggestion, that Rouson
was unable to rely on the statements of a witness who was under oath and the
Assistant State Attorney who failed to correct the untruth is ludicrous.
Furthermore,
by suggesting that Mr. Rose was not diligent in asserting his Brady
claim, Appellee apparently does not subscribe to the tenet:
[t]he
presumption, well established by “‘tradition and experience,’” that
prosecutors have fully “‘discharged their official duties,’” United
States v. Mezzanatto, 513 U.S. 196, 210, 115 S. Ct. 797, 130 L.Ed.2d 697
(1995), is inconsistent with the novel suggestion that conscientious defense
counsel have a procedural obligation to assert constitutional error on the
basis of mere suspicion that some prosecutorial misstep may have occurred.
Strickler, 119 S. Ct. at 1951.
Mr.
Rose asserted he was diligent in presenting his successive motion for
postconviction relief. Appellee asserts that no factual allegations regarding
diligence were presented in Mr. Rose’s case (Answer at 11). Appellee
apparently ignores Mr. Rose’s clear statement in his Rule 3.850 motion that he
learned of the Brady evidence only after Mr. Rose himself spoke to
another death row inmate and learned that Ms. Barton admitted in a deposition in
the Rhodes’ case that she had made a deal with the State in Mr. Rose’s case
(PC-R2. 1-25) . Further, Appellee appears to ignore this Court’s existing case
law instructing that allegations of fact regarding due diligence must be
accepted as true. Swafford v. State, 679 So. 2d 736 (Fla. 1996); Card
v. State, 652 So. 2d 344 (Fla. 1995).
It
was improper f or the lower court to decide, without the benefit of testimonial
and documentary evidence, that Mr. Rose failed in his diligence. Mr. Rose met
the pleading requirement, and any questions as to diligence are properly decided after an
evidentiary hearing on the issue, not before. Swaf ford, 679 at
739 (“We accept as sufficient f or the purposes of demonstrating that an
evidentiary hearing is required, Swafford’s claim that Lestz’s statement
amounts to newly discovered evidence… Accordingly,
we direct the trial court on remand to determine whether Swafford has
demonstrated as a threshold requirement that his untimely and successive motion
for postconviction relief was filed within two years of the time when Lestz’s
statement could have been discovered through the exercise of due diligence.”)
In
essence, the lower court held a one-sided hearing regarding the issue of
diligence. The lower court allowed the State to introduce non-record materials
in an attempt to show Mr. Rose had not been diligent.1 Mr. Rose was
denied the opportunity to prove his diligence and to counter the State’s
assertions. Mr. Rose met his burden of proof and, at a minimum, was entitled to
an evidentiary hearing to offer proof in support of his diligence.
Note [1] Appellee suggests that Mr. Rose had the opportunity to “offer” public records to support his claim (Answer at 12). This statement is patently false. No such opportunity was ever offered Mr. Rose. Rather, the State was in fact the party who “offered” the lower court non-record materials which were used against Mr. Rose without giving him the opportunity to rebut them.
Appellee, in her Answer Brief, concedes the lower court relied upon non-record materials. The Appellee then sug gests that the non-record materials benefited Mr. Rose, disregarding the lower court’s reliance on these materials in reaching its conclusion that Mr. Rose was not diligent.
ARGUMENT II - GOTCHA
The State utilized three components in securing the conviction and death
sentence against Mr. Rose. Firstly, the State relied upon eyewitness testimony.
Secondly, the State relied upon the inference of inculpatory blood evidence.
Thirdly, the State relied upon the testimony of Poole and Barton. In denying Mr.
Rose the opportunity to prove his claims in an evidentiary hearing, the lower
court relied upon the first two components of the State’s case. The lower
court held, and the State argued, that the new information regarding the deal
between the State and Barton/Poole would not have affected the outcome of the
trial, because of the eyewitness testimony and the blood evidence (PC-R2.
7S6-758)
In Mr. Rose’s initial
postconviction ‘motion f or relief, he attacked the constitutionality of his
conviction and sentence based upon the lack of an adversarial testing, the lack
of a zealous advocate, and the ineffectiveness of his attorney. The lower court
summarily denied all of these claims without the benefit of an evidentiary
hearing. In so doing, the lower court relied upon the strength and damaging
nature of the Barton/Poole testimony (PC-R. 756-757).
Now, with evidence surfacing attacking the Barton/Poole prong
of the State’s case, the lower court relies on the integrity of the first two
components of the State’s case and disregards the allegations Mr. Rose pleaded
in his initial motion for postconviction relief attacking these components.
A
proper cumulative error analysis requires the court to consider all current and
previous allegations attacking the constitutionality of the original judgment
and sentence. Furthermore, the court cannot simply disregard the role of the
jury, and substitute its own judgment for that of the jury.
The
lower court insists on only looking at the four corners of the original trial
transcript. The lower court did so in 1989, in its ruling denying an evidentiary
hearing on guilt phase. A myth has been created concerning the strength of the
evidence supporting Mr. Rose’s conviction and sentence. The myth began during
trial, wherein the lower court refused to acknowledge Rouson’s self-doubt
regarding his own zealous advocacy f or Mr. Rose (R. 914) . The lower court
denied Rouson’s request for more time to prepare (R. 469-470), denied
Rouson’s requests to withdraw (R. 171a; 914), even going so far as to demand
his presence in chambers to discuss his in-court statements that he could not
ethically continue to represent Mr. Rose (R. 914). Not only did she try to
assuage Rouson’s self-doubts, when Mr. Rose brought these same matters to the
court’s attention, the court promised Mr. Rose these issues would be fully
investigated in postconviction (R. 924). Indeed, when faced with an attack on
Rouson’s failure to provide effective representation and zealous advocacy, the
lower court disregarded all evidence of ineffectiveness, relying on the
unchallenged testimony provided at trial.
If
the lower court conducted a proper cumulative error analysis, it would be clear
that Mr. Rose was not afforded a constitutional trial. An effective advocate
would have seriously undermined the State’s story:
1.
The eyewitness testimony became much stronger between the time of the original
interview, conducted with all eyewitnesses together, and the time of trial. The
identification by all four witnesses of Mr. Rose from a highly suggestive photopak
that did not give “rise to that much substantial likelihood of irreparable
mistaken identification” (R. S07-509) could have been suppressed. At the time
of the initial interview the four witnesses had, at most, a vague description of
the perpetrator. This Court is unaware of that fact, due to the lower court’s
continual refusal to allow Mr. Rose the chance to prove his allegations in an
evidentiary hearing. Furthermore, this Court has never had the opportunity to
evaluate the weakness of their identification of Mr. Rose in light of the
numerous inconsistencies contained in the police reports, depositions, motion to
suppress hearing, and trial testimony. Postconviction counsel is and was
prepared to prove this is a classic case of misidentification Effective counsel
would have successfully suppressed the identifications, or would have destroyed
the eyewitnesses in the eyes of the jury, and would have called an expert on
eyewitness misidentification.
2.
The State completely fabricated a story regarding the blood evidence. No blood
from the victim was found on Mr. Rose.
Due to Rouson’s abysmal representation, the State
was able to improperly introduce, through a witness with absolutely no personal
knowledge or expert qualifications, a story that the blood tests were unreliable
because of “mixing of the blood” during collection. This “mixing of the
blood” theory presented by the State is patently false, as evidenced by the
affidavit from Dale Nute presented during Mr. Rose’s initial postconviction
proceedings. Furthermore, the actual report prepared by the Florida Department
of Law Enforcement clearly shows that none of the victim’s blood was found on
Mr. Rose. Effective counsel would have, at a minimum, deposed the examiner who
tested the blood and prepared the report concluding the victim’s blood was not
found on Mr. Rose. After deposing the examiner, it would have been clear this
would have been a favorable witness to call during the defense’s
case-in-chief.
3. An
effective advocate could have thoroughly impeached both Barton and Poole with
the deal brokered by the State and the glaring inconsistencies contained in
their own statements. In fact, this Court is unaware that Mr. Rose never stated
he made the victim a “vegetable.” Barton attributed this statement to Mr.
Rose at trial, but due to Rouson’s total lack of preparation and unfamiliarity
with the police statements and depositions, Rouson failed to impeach Barton with
her initial statement to the police. In her initial statement, she attributes
the statement to herself, and not to Mr. Rose. Effective counsel would have
shown to the jury that Poole was also very close to the murder scene, was also drinking at the same bar as the victim earlier in the
night, and most importantly, that Poole matched the first, general description
given by the eyewitnesses. Finally, the lower court, in denying Mr. Rose the
opportunity to prove his claims in an evidentiary hearing, relied on a
misrepresentation perpetuated by the State that Barton/Poole never changed their
story. This is patently false, but only becomes clear upon a close and detailed
reading of the entire record, not just the trial testimony.
Mr.
Rose’s case is strikingly similar to the factual scenario in State v.
Gunsby, 670 So. 2d 920 (Fla. 1996). The State’s case against Mr. Gunsby
consisted of eyewitness testimony (two eyewitnesses) and inculpatory remarks
attributed to Mr. Gunsby by several witnesses.2
Like Mr. Gunsby, Mr. Rose was represented by a woefully
inexperienced attorney with no prior capital or even first/second degree trial
experience — attorneys so inexperienced they had never before used any mental
health experts. In Gunsby, postconviction counsel attacked the
effectiveness of trial counsel and alleged a Brady violation. Id. This
Court, upon review of the lower court’s order denying guilt phase relief, held
that the guilt phase ineffectiveness claims the lower court found meritless had
to be considered in conjunction with the Brady evidence. Id. at 924.
Note [2] At Mr. Gunsby’s trial, the State presented a motive for the murder. However, in Mr. Rose’s case, no motive was ever offered by the State. The fact that the victim and Mr. Rose were friends, witnesses were available to testify at trial that Mr. Rose defended the victim earlier in the evening and Mr. Rose and the victim’s mother lived together, prevented the State from offering any motive that does not defy logic.
Gunsby
also teaches that in evaluating constitutional errors a court may overlook
diligence and consider the evidence in conjunction with other constitutional
errors:
In
the face of due diligence on the part of Gunsby’s counsel, it appears that
at least some of the evidence presented at the rule 3.850 hearing was
discoverable through the use of due diligence at the time of trial. To the
extent, however, that Gunsby’s counsel failed to discover this evidence,
we find that his performance was deficient under the first prong of the test
for ineffective assistance of counsel . . Nevertheless, when we consider the
cumulative effect of the testimony presented at the Rule 3.850 hearing and
the admitted Brady violations on the part of the State, we are
compelled to find, under the unique circumstances of this case, that
confidence in the outcome of Gunsby’s original trial has been undermined
and that a reasonable probability exists of a different outcome.
Gunsby, 670 So. 2d at 924. Counsel for Mr. Rose argued
that the lower court, if it were to rely on a diligence bar, to consider the
Barton/Poole deal under a Strickland analysis (PC-R2. 15). The lower
court refused to do so and the Appellee has attempted to turn Appellant’s
request into a concession. (Answer at 11)
(“Rose’s motion offers a claim of ineffective assistance of counsel
as an alternative to the Brady claim, thus apparently acknowledging that
counsel could have discovered this information”) Gunsby illustrates the
propriety of alternative theories for relief.
This
Court’s ruling in Gunsby addressed the correctness of the lower
court’s ruling after an evidentiary hearing, wherein the standard for relief
is higher. See Strickland v. Washington, 466 U.S. 668 (1984) ; Brady
V. Maryland, 373 U.S. 83 (1963) . In Mr. Rose’s case, the proper analysis
is whether Mr. Rose has now overcome the lower standard of whether or not an
evidentiary hearing is warranted. Lemon v. State, 498 So. 2d 923 (Fla.
1986).
A
thorough review of the record indicates that every decision made by the judge
and jury at Mr. Rose’s capital trial and the lower court during Mr. Rose’s
postconviction hearing relied on the credibility of Poole and Barton’s
testimony that Mr. Rose had confessed to them and requested that they provide
him with an alibi. In other words, Poole and Barton were crucial in convicting
and sentencing Mr. Rose to death.
Mr.
Rose uncovered that at the time of his trial, Barton/Poole received lenient
treatment from the State in exchange for their testimony against Mr. Rose
(PC-R2. 1-25; 187-234) . Neither Barton nor Poole were strangers to the criminal
justice system and they knew from their prior experiences with the State how to
procure benefits in exchange for a story the State wanted to hear. Barton has
admitted that a deal existed in exchange f or her testimony against Mr. Rose.
The Appellee never once mentions this fact in her Answer. In light of Barton’s
admission, Young’s interruption of Barton’s deposition, at the moment Rouson
was inquiring about prior and pending charges, can be interpreted in no other
way than outright obstruction of justice.
Appellee
attempts to minimize the importance of the Borton\Poole testimony. Appellee even
goes as far as to characterize these two witnesses as simply “ancillary”
(Answer at 17). Clearly, Appellee must downplay the necessity of Barton and
Poole’s role in securing the conviction and death sentence, in an attempt to
shift the focus from the State’s deception. The State cannot argue that it was
proper for Young to actively participate in deceiving Mr. Rose, the jury, the
lower court, and this Court. The easier course, short of conceding error, is to
simply mischaracterize the importance of these two critical witnesses.
Appellee
continues the deception, by asserting that “the Barton/Poole trial testimony
had little significance in the imposition in the death penalty.” (Answer at
20). Appellee distorts the lower court’s sentencing order. The lower court
relied on the Barton/Poole testimony to support a finding of cold, calculated,
and premeditated. The lower court relied on the Barton/Poole testimony to defeat
all mental health related statutory mitigators. The lower court relied on the
Barton/Poole testimony to find the testimony of a mental health expert, at the
1989 evidentiary hearing, incredible. But Appellee chooses to argue to this
Court that Barton/Poole were unimportant, and the revelation of their cozy
relationship with the State could have in no way affected the nine-three jury
recommendation for death.
Appellee also urges this Court to recede from Bagley3
and Giglio4, arguing that because the suppressed
evidence concerned “only” a deal between the State and the witnesses, this
Court should overlook any constitutional impropriety (Answer at 17). However,
the truth of a witness’ testimony and a witness’ motive f or testifying are
material questions of fact f or the jury, thus, the improper withholding of
information regarding a witness’ credibility is just as violative of the
dictates of Brady as the withholding of information regarding a
defendant’s innocence. Bagley, 473 U.S. 667.
In
fact, Gialio dealt specifically with the government’s withholding
evidence of an agreement f or the witnesses’ testimony and then presenting
testimony that there was no such agreement. 405 U.S. at 154-155. Appellee acts
surprised that Mr. Rose cited to bath Giglio and Agurs5 despite
his reliance on both of these cases in his motion f or postconviction relief,
his Huff hearing, and his initial brief on appeal. Appellee’s surprise
is disingenuous, when Young is on record directing witness Barton to clarify f
or Rouson whether her most recent charge was a felony or misdemeanor and sitting
mute when Barton failed to disclose all the benefits she received, including a
credit for time served on a serious felony violation of probation.
Notes [3, 4, 5] 3: United States v. Bagley, 473 U.S. 667 (1985); 4: United States v. Giglio, 405 U.S. 150 (1972); 5: United States v. Agurs, 478 U.S. 97 (1976).
It is indisputable, for the purpose of whether Mr. Rose should be
entitled to an evidentiary hearing, that a deal was brokered between the State
and Barton/Poole. Appellee, like the lower court, confuses the proper standard
by which to evaluate whether Mr. Rose should be granted an evidentiary hearing.
The lower court evaluated Mr. Rose’s claims as if an evidentiary hearing had
already been conducted. The lower court utilized the Jones6 test
f or newly discovered evidence of innocence, instead of evaluating Mr. Rose’s
claims under the Lemon test, as to whether an evidentiary hearing was
warranted. By denying Mr. Rose the opportunity to present evidence in support of
his claims at an evidentiary hearing, the court is sending a clear message to
the State that it will tolerate the suppression of evidence. The State should
not be allowed to prosper in this manner, especially when a man’s freedom, and
his life, are literally at stake.
Note [6] Jones v. State, 591 So. 2d 911 (Fla. 1991).
Appellee
further distorts the facts and perpetuates the myth surrounding Mr. Rose’s
conviction and sentence. The State continues to manufacture the story best
suited to support Mr. Rose’s conviction and sentence due to Rouson’s
complete lack of effectiveness. When the lower court denied Mr. Rose a guilt
phase evidentiary hearing, it stated that the blood evidence was immaterial in
securing the conviction and sentence against Mr. Rose. When contemporaneously
denying Mr. Rose an evidentiary hearing, the lower court, and the Appellee,
argue that Barton/Poole are completely unnecessary in the judgment and sentence.
This leaves Mr. Rose’s conviction standing solely on the eyewitness testimony
— testimony that has never been challenged. It was not challenged at trial,
and the lower court prevented Mr. Rose from challenging that testimony at an
evidentiary hearing. Considering, after the State’s concessions that the other
two prongs were completely unnecessary, that Mr. Rose’s conviction rests
solely on the eyewitness testimony, this Court must remand this case for an
evidentiary hearing on the newly discovered Brady evidence in conjunction
with the allegations of ineffective assistance of counsel.
The
eyewitness statements contained in the police reports, witness statements, and
depositions differ greatly from the testimony presented at trial. Rouson failed
to make this known to the lower court. The lower court prevented Mr. Rose from
making this known when it denied his motion to dismiss Rouson. The lower court
prevented this from becoming known by denying Mr. Rose an evidentiary hearing on
all guilt phase issues. The Court, in upholding the lower court’s original
order summarily denying all guilt phase claims, did not know of the different
facts contained in the police reports, witness statements, and depositions. Now,
after raising yet another new constitutional claim, the lower court again
prevented the true facts from coming forth. The State attempts to buttress that
order. This Court must step in, and halt the myth once and far all.
I HEREBY CERTIFY that a true copy of the foregoing Reply Brief has been furnished by United States Mail, first class postage prepaid, to all counsel of record on February 11, 2000.
GREGORY C. SMITH Capital Collateral Counsel, Florida Bar No. 279 0
JOHN A. TOMASINO Assistant CCC-NR. Florida Bar No. 106021
LINDA McDERMOTT Assistant CCC-NR, Florida Bar No. 0102857
Post Office Drawer 5498
Tallahassee, FL 32314-5498
(850) 487-4376
Attorneys for Appellant
Copies furnished to:
Carol Dittmar
Assistant Attorney General
Office of the Attorney General
2002 N. Lois Ave.
Suite 700
Tampa, FL 33607-2391